Can I Record a Conversation with a Client in Western Australia?

If you are a Psychologist, Counsellor, Occupational Therapist, Social Worker, Psychotherapists or another related Allied Health Professional, you may be considering the use of software that records your client sessions for the purpose of either:

• Keeping an audio/video recording of the session;
• Transcribing the whole session; or,
• Using AI to generate a summary of the transcript.

Given the wide proliferation of transcription and artificial intelligence powered session summarisation software, practitioners should be aware of the relevant laws of their state and ensure that any steps to record or transcribe a client session is done lawfully and minimises risk. Given that all transcription software involves making a record of the conversation, care should be taken that no laws are inadvertently breached.

This series will look at the laws in each of the relevant states and territories for the recording of client sessions.

What is the law on Recording Sessions with a Client in Western Australia?

In Western Australia, Section 5 (1) of the Surveillance Devices Act 1998 (WA)(the WA Act) provides:

a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device — (a) to record, monitor, or listen to a private conversation to which that person is not a party; or (b) to record a private conversation to which that person is a party.

There are some exceptions to the prohibitions contained in sections 5 of the Surveillance Devices Act which include the following:

• Where all parties involved give implied or express consent to the recording;
• Where a warrant or other legal authorisation has been made for the use of a listening device in circumstances such as in the course of an investigation into a suspected criminal offence;
• Where a video recording is done in public where there is no expectation of privacy;
• Where the recording is necessary for the protection of the lawful interests of the party who makes the recording;
• Where the recording is in the public interest, such as where, for example, it is to protect the best interests of a child.

The WA Act does not define what ‘Implied Consent’ means, however, in any circumstance where consent is required it would be imprudent to seek to rely on the circumstances of the recording to infer that consent was present. It is far more favourable to make the collection of consent a key element of client engagement so that it forms a part of the client record.

Consequentially, in Western Australia consent must be sought before any conversation can be recorded.

Additionally, practitioners should be aware of Commonwealth legislation which similarly impacts the lawfulness of recording conversations.

Can I Record a Conversation with a Client in Australia?

Recording telephone conversations is subject to additional federal regulations under the Telecommunications (Interception and Access) Act 1979 (Cth Act). This law prohibits the use of devices to “intercept” communications transmitted over a telecommunications system. Section 6(1) states:

(I)nterception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.

A “communication” includes conversations or messages in any form—speech, data, text, images, or otherwise. It is considered to be passing over the system until it becomes accessible to the intended recipient. A “communication” for the purpose of this Act would also include conducting any sessions over a videoconference call. Recording is defined in the Cth Act to include ‘transcribing’ a conversation.

The prohibition under the Cth Act applies unless the person to whom the communication is directed has consented to the recording (Section 7(5)(a)). Notably, the Cth Act would likely not apply to recording a phone conversation where the recording device is separate to the communication, for instance a phone or separate recording device as this is likely not an ‘interception’.

Consequentially, to the extent that any practitioner relies on an inbuilt app or software to make a recording of a communication (including a transcription), then consent would need to first be received. For instances, features such as Zoom’s AI summarisation function or any other similar inbuilt software function may breach this law.

Conclusion

It is important to note that if you are treating a client that is out of your state (or territory) you may be caught by the laws of that other state. With this in mind, in any event, if you are planning to use any software tool to record a client conversation, we recommend that you ensure your intake process sets out a clear process for obtaining informed consent to ensure your process and records remain lawful

Therapas provides a template set of terms for insertion into your client agreement to ensure that your practice records informed consent from your clients on engagement.

_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}